Crist, et al. v. Cline & Brest – Oral Reargument – March 22, 1978

Media for Crist, et al. v. Cline & Brest

Audio Transcription for Opinion Announcement – June 14, 1978 in Crist, et al. v. Cline & Brest
Audio Transcription for Oral Argument – November 01, 1977 in Crist, et al. v. Cline & Brest

Audio Transcription for Oral Reargument – March 22, 1978 in Crist, et al. v. Cline & Brest

Warren E. Burger:

We hear arguments first this morning in Crist against Cline.

Mr. Keller, you may proceed, whenever you are ready.

Robert S. Keller:

Mr. Chief Justice and may it please the Court.

You will recall this matter was remanded to be re-briefed and re-argued on two expanded issues and the first issue was whether or not the federal rule that jeopardy attaches in jury trials, when the jury is sworn is constitutionally mandated.

I think after reading the briefs in this thing that we can fairly agree without arguing that at the time of the constitution it was not constitutionally mandated and it was not a part of the constitution.

There were two common law rules at that time, Lord Coke’s Rule and — and the Double Jeopardy Rule and when we get to as far as Perez.

Perez in the Touch Tone case of manifest necessity says, “This is not a Fifth Amendment consideration, this is not Double Jeopardy.”

Perez was going into the question of whether or not it is permissible to take away that defendant’s right to a jury, once the jury is empaneled to sworn, Lord Coke’s Rule made it mandatory that you go to court for the verdict, but it clearly at that time was not a part nor considered a part of the Fifth Amendment.

It does not become that until — and various jurisdictions in construing the rule of practice or the Lord Coke’s Rule, there were dismissals.

There were improper dismissals and they held the improper dismissal to be tantamount to a jury verdict and as a consequence of that, then it was Jeopardy under the Fifth Amendment.

Potter Stewart:

In the original concept of the common law, there could be no such thing as a failure of a jury to reach a verdict, is not that correct?

They lock them up on bread and water and they would come back with a verdict on whenever they ready?

Robert S. Keller:

This did happen, yes. You do not see any changes in that, until Blackstone does bring out the words — maybe there would be evident necessity, but it took a real necessity, a juror had to die, a hung jury are the things that gave them all their (Voice Overlap) —

Potter Stewart:

There was no such thing as a hung jury in the concept of jury common law?

Robert S. Keller:

No, no.

Ironically in the common law states, common law to get clue, in Pennsylvania and I am talking about cases that were all decided back between 1800 and 1820, they upheld Lord Coke’s Rule and that jury had gone 36 hours, 24 without food or drink.

Two jurors, 75 years of age or older, who had just got out of the hospital were in trouble and the doctor looked at them and said if they have some food or drink, something they can go on.

So, the judge permitted the jury to vote on it and the jury said, “No, do not give it to them” and obviously they had them hanging on the ropes and the judge finally let them off the hook and dismissed the jury and that Pennsylvania Supreme Court held, “No, this was improper and free the defendants.”

They ought not to be and they took a strict reading of — of Lord Coke’s Rule.

This gets commented on, not only later by me, but when I start talking about the Arizona against the Washington case and wonder weather or not we even ought to be here today in the face of that case, that opinion, but that case recites the reason why you do not keep a jury under that pressure and certainly as you mean, it is ironic.

Warren E. Burger:

Was there an earlier time when even after an acquittal, prosecutions were brought again and again until –?

Robert S. Keller:

This is a recited fact during the reign of the Stewarts, Mr. Chief Justice and Lord Coke’s Rule would have come down early in the 1600s and between that time, in 1688 you would had reign of two kings, the Stewarts at that time, yes there were re-prosecutions until the prosecution could get a sufficient case together, and it was horribly abused.

The history as I read it that as of the revolution in 1688, they went back to Lord Coke’s Rule and we did not have that occurring anymore.

The second part of your question is if there were an acquittal, would there be a re-prosecution?

Short of the reign of the Stewart and I do not know the answer to that because that comes out on a case so we know of no time, one there was ever an acquit of a re-prosecution and as a consequence of that whether it was by a rule of Court or whatever the rule, as a consequence of the acquittal, than the double jeopardy application of the common law came into the effect and I cannot answer.

I know of no case, whether has been an acquittal and a re-prosecution, but I was not researching from that standpoint either.

When we researched this and found that the time of jeopardy at the common law is at the time of the verdict of the jury.

There was not any question in our minds.

One; nobody today is going to go back that far in time and say that jeopardy does not attach until the time of the verdict, as it was at the common law and we felt that for simple reasons that we had too much law since then, particularly combining manifest necessity with double jeopardy.

Two; fundamentally it was just unconstitutional you can put a defendant to the blade, you can commit his defenses and still not say that jeopardy attaches, but we had real problems in briefing this, in getting the vehicle to come — to come forward from the time of — of the judgment up to where we want to be today.

Robert S. Keller:

We did not know what the vehicle was and then came Arizona against Washington and the vehicle is the “valued right” concept.

Downum in 1963, Justice Tuttle in the Ninth circuit in this case said that Downum necessarily has to stand for the proposition that jeopardy attaches at the time that the jury is sworn and the reason that Downum stands for that is because that case involved a case where after the jury was sworn and before the first witness was sworn, the case ended.

They did not have their witnesses for count 6 and 7 and the trial was terminated and from that, Justice Tuttle says, “Downum necessarily stands for this position” and I submit that when you read Arizona against Washington today, you have to come out with the same conclusion.

Arizona against Washington said, “This was an improper opening statement by a counsel, in this case defense counsel, but made at that time between the swearing of the jury and before the first witness.

The fact that two witnesses testified in that case are really incidental to the opinion.

The rationale is the “valued right” concept goes back to the time of opening statements and that of necessity is before the time that the first witness is sworn.

So reading this case as you read Downum, you have to say Arizona against Washington stands for this proposition and that means that the only thing that we can really argue today to this Court is that we do not feel that the “valued right” concept means all of that and we are not sure that what this Court meant, when it said that.

And the reason that I say that is that this Court was particularly careful in the opinion, not to say that.

Arizona against Washington was argued the before the day we argued the last time, so it was pending during the time that our case was pending.

Much of what was said in Arizona against Washington comes out of the briefs that we submitted in this case.

So, that we know that the Court was conscious of this case when the opinion was written and yet the Court assiduously did not say jeopardy attaches at the time that the jury is sworn.

So, we do not know what we are talking about in terms of “valued right” as the vehicle for bringing jeopardy from the time of verdict, up to some starting point in time.

If you read the reasons for the valued right in the Arizona case, then you find that it is to avoid emotional and financial burden a retrial would cause as you find this to prolong the — avoid the prolongation of the period of stigma and it may even enhance risk that an innocent defendant maybe convicted.

That means if you read it literally, you could even be going back to the time that you first select the panel from which you are going to voir dire.

We do not know where the starting point is on the valued right concept.

We do know, what has been argued under the valued right that this valued right is a right to a particular tribunal and that is expressed as early as 1840 in United States against Shoemaker, it is Lord Coke’s rule.

You are entitled to this panel, this particular jury.

And is also has been argued that the valued right means that anything that goes to that jury, whether it is in the voir dire questioning, whether it is in the opening statement, anything that does something to that tribunal makes that tribunal valuable.

Serfass, United States against Serfass held that the constitutional policy is underpinning the Fifth Amendment are not implicated until jeopardy attaches.

Serfass also held that this Court has consistently adhered to the view that jeopardy does not attach until the defendant is put to trial before the trier of the facts, jury or non-jury.

And then Serfass held, in two different places, without risk of determination of guilt, jeopardy does not attach.

Now, if we read the Serfass case in conjunction with Arizona against Washington, then we are saying that clearly jeopardy does not attach before the time the jury is sworn and no later than the time that the first witness is sworn and we have at least narrowed it down to that point.

If we go back to those points then, then when we talk about the financial and emotional burden that was expressed in the Arizona case, that is not applicable to that narrow period of time.

What difference are we talking about in finances or emotions between the time the jury is sworn and the time the first witness is sworn?

The second reason given is the prolonging of the stigma and that distinction has gone.

Surely, we are not talking about a prolonging of a stigma between the time the jury is sworn and the first witness is sworn.

And, the last is enhancing the risk of conviction of an innocent man and that cannot happen until the first witness is sworn.

Warren E. Burger:

In Montana, is it customary for both the counsels to make their opening statements before the first witness is called?

Robert S. Keller:

No sir and I want to get to that and the unfortunate part about it and that is where you have all of the advantage, I can only tell you of my practice in Montana and it is 20 years of trial on both sides and on the bench and it is uncommonly rare that defense counsel says anything in the beginning.

I have never heard a defense counsel say anything in the beginning that the prosecution did not already know.

Robert S. Keller:

The only thing that they say is something that they want that jury to hear, which the prosecution already knows and they want the jury to keep a fair mind on something.

an open mind with there as sort of facts come out.

Thurgood Marshall:

They want the jury to focus on one point?

Robert S. Keller:

That is conceivable.

You do pick it up in the voir dire, to tell you the truth sir.

I do.

It is there.

That is right, but at least we have reached the point that we are not going to hold constitutionally that somebody is entitled to anything less than a fair jury, so what you have done to the jury in the voir dire, is not something that is entitled to protection and this gets to the point that I was reaching.

The real concept of a “valued right” to me is any trial lawyer knows that that when that defendant goes through a retrial, let us say a hung jury, so we do not have any problem there, he really has the odds against him.

This was brought out in the Arizona case, by Judge Leventhal in the Carsey case and Judge Leventhal pegged it.

The second time through, those — those witnesses whose weaknesses were developed by cross examination by defense in the first case, they start to shore up their testimony.

It is not a — it is not a significant alteration, but it is there and I have yet to see the defendant go through a retrial that everything did not change.

All of the surprise is gone. The prosecution knows where he has gone after the first dry run.

The prosecution does not know that in the first case.

They have to be prepared against anything his defense counsel will do.

In the second run, there is no spontaneity, there is nothing.

That defendant has an impossible burden that second time, he really does and this is the reason why — I thought about this after the argument last time.

You know I argued to you then as matter of law and as a matter of fact that defendant is not in jeopardy until something comes up that makes out a prima-facie case.

And I was arguing from Serfass that without risk of determination of guilt, but I thought about this afterwards and I thought, you know really, from the time that the defense counsel makes his first objection or does not make his objection as a matter of strategy, that defense is committed.

That is when they really going in and expose their hand to the prosecution and from that point on, that defendant does have a valued right to get this matter heard by this jury, by this judge, by whatever because now, for the first time, when he did not have to, he has tipped his hand and now his concern is interest is there, is important or as was said in Jorn in defining the same valued right, if the right is valued it is because the defendant has a significant interest in the decision of whether or not to take it from the jury.

And I submit, until the time that the defense counsel has done something in this case, it tips his hand to the prosecution, up until that point it is not the time of interest that is so significant, but deserves constitutional protection, but from that point on it is.

Rather than try and find out in any given case when that is, then it is the time evidence is given.

You know is right after that, in any given case.

Thurgood Marshall:

But it could be if against the usual policy, defense counsel makes his argument to the jury?

Robert S. Keller:

It certainly could.

Thurgood Marshall:

It could, then he is committed?

Robert S. Keller:

That is right.

Thurgood Marshall:

Probably a committal —

Robert S. Keller:

That is right, problem with that rationale is I just do not see —

Thurgood Marshall:

They do not do it?

Robert S. Keller:

But if we are going to say that is what it takes to put jeopardy, I expect we will start seeing it, but that the same defense counsel could tell the prosecution three weeks before that “This is what I have up my sleeve” and I cannot imagine in trying to tell him three weeks before anymore than I can see in a competent defense counsel tipping to the prosecution.

Thurgood Marshall:

Well, I think the difference is that one is in the presence of the Court and he is stuck with it as if he just tells the prosecutor he is not stick with it?

Robert S. Keller:

Oh! I see what you mean.

Well, that is true.

Thurgood Marshall:

Would not that be?

Robert S. Keller:

Yes, yes that clearly is.

He could do it for the record three weeks before if he wants to, but as a practical matter no, he really does not and it is not a case of giving the prosecution a week to get ready.

No defense counsel gives a prosecution five minutes to get ready if they can avoid it.

You do not tell something that they do not know, until it is your turn to put on your case and then it comes and I just simply and I have to speak empirically, I do not see defense counsel telling the prosecution anything any sooner than they have to.

And, when they make an opening statement, they do not tell them anything, the prosecution does not know.

They are just telling the jury what to expect, but the prosecution knows this.

Potter Stewart:

As I understood you earlier, you told us that in your State of Montana, it is not the practice to have opening statements.

Robert S. Keller:

No, I did not.

In answer to that property then Mr. Justice Stewart, it is, but not at the time of the — prior to the taking a testimony.

The defense counsel usually reserves his opening statement.

He has the right to make it then and he asks — he says, “I am going to reserve” and when the prosecution has rested and the defense is now ready open his case, then he makes his opening statement, that is long after the witness —

Potter Stewart:

After the prosecution witnesses have all testified, the prosecution has rested, then the defense counsel makes his open statement to the jury?

Robert S. Keller:

That is correct.

Now, he has made it before, but he has never — I have never heard he make it that he tells the prosecution anything.

It is only for the benefit of that jury going to this particular — the defense knows what the prosecution is going to give.

If he did his home work at all, he knows what the witnesses have and he is telling this jury at that time what to anticipate and in essence to keep your mind open, but he is not telling the jury anything that the prosecution does not already know.

It is that tipping of the defense that I think makes anything subsequent to that valued, to that defendant.

Potter Stewart:

When if at all Mr. Keller does the prosecutor make his opening statement in your practice, in Montana?

Robert S. Keller:

Well, he makes his statement as such after the swearing of the jury and before the swearing of the first witness, but there is in various jurisdictions, various judges before the state, there is some opening remark made at the time you first picked the panel of 24 that you are going to cut down to 12, so that they at least know who the defendant is, what he is charged with.

Potter Stewart:

Well, that is part of voir dire, is it not?

So you can ask him, “Do you know the defendant –”

Robert S. Keller:

And the prosecutor who starts first may well be the one.

The judges do not enter that actively in the questions of the parties doing this, as distinguished from the federal court, where the judge literally conducts all of the voir dire.

William H. Rehnquist:

But, do the Montana judges not, at the time of the filling of venire into the box, make some very brief statement that this is a criminal case and such and such is the charge and that sort of thing?

Robert S. Keller:

Yes sir, yes sir and it varies with judges.

Robert S. Keller:

Almost all of them do at least that.

Some will go through preliminary half-a-dozen questions.

Do you know any of the — these are the counsels and the parties, do you know them and ask them and get those questions out of the way in general and if they do, they hold their hand up and they leave it up to counsel to interrogate further.

And Mr. Keller, when actually is the jury sworn, after selection or as the panel is sworn?

Robert S. Keller:

It is initially Sworn when it is picked to tell the truth as to the answers that are given, but when — and that is the whole panel.

Potter Stewart:

It is the whole venire?

Robert S. Keller:

That is correct.

And before the 12 are chosen?

Robert S. Keller:

Exactly.

Thurgood Marshall:

That is only —

Now the 12 begin — after the 12 are chosen or later?

Robert S. Keller:

Sworn again.

Potter Stewart:

And that is to (Voice Overlap)?

Robert S. Keller:

That is right.

And what we are talking about —

Robert S. Keller:

It is three times they swore them.

The first swearing is that they are going to tell the truth as to the questions asked, generally as to whether they qualify even to be jurors in general, then they go and they have another oath that they are going to answer the questions asked in this particular cause by counsel and as to their respective qualifications.

And that each one — each one individually does that? Do you swear each one individually?

Robert S. Keller:

No sir, no sir, never.

In fact, as a matter of practice swear everybody in the Court room the first time.

First time it is done in the Court and they have to be qualified.

Okay then from that, you pick your panel for that day and you usually pick 24 for a trial of 12 because you have enough peremptories going in there.

You want to be — when you are all done, you want to have 12 left.

You have 20 in there to get by.

There, they stand up and take the oath, but so the remaining jurors in the courtroom who may well be called into this case if somebody is out for cause and that is to answer the questions in this case. But when you finally get to 12 and the alternatives, if there is going to be any, those 12 or 14 stand up and now are sworn the third time.

Warren E. Burger:

But this first oath is essentially like the oaths given to witnesses, merely to tell the truth?

Robert S. Keller:

Yes sir.

First two oaths are that.

I do not think anybody ever contented.

They have anything to do what we are talking about.

Robert S. Keller:

We are talking about swearing this final body of 12 to —

Byron R. White:

That is the — that is the swearing — that it is claimed jeopardy — jeopardy attaches?

Robert S. Keller:

That is correct.

Only then, not to —

Robert S. Keller:

That is the one I surely construe to mean.

That is — historically, that is the time when that jury is sworn —

Byron R. White:

Some have argued it ought to — some have argued that — that jeopardy ought to — ought to attach earlier?

Robert S. Keller:

Yes, yes because of what is said to that jury in the voir dire that it should.

Byron R. White:

Exactly.

Robert S. Keller:

Yes, and our position on that is consistent with the Arizona case and we cited in our brief Morris, you are just not entitled to a prejudiced jury.

The real function at the selection at that time is to come out with 12 jurors that are fair-minded and impartial, and it may well be that as a defense counsel, I would like to have some sleepers on there.

It may well be as a prosecutor, I would like that, but I far cry to say that it is entitled to Constitutional protection.

So theoretically, we are supposed to be coming out with 12 impartial people and we have no particular interest in that tribunal other than the fact that they be impartial jurors.

John Paul Stevens:

Mr. Keller, you have indicated that it would make sense to have the point to which jeopardy attaches be one that the defendant has committed himself or want to make a difference.

Are there reasons for moving the point at which jeopardy attaches back from — from the present rule that it attaches when the jury is sworn back to back, significant enough to overcome the interest in having settled law remain clear and definite and certain.

There are some advantages there, but everybody now knows what the rule is.

Do you think it is the change?

Robert S. Keller:

Settled law did not become settled law —

John Paul Stevens:

No, but they are settled today —

Robert S. Keller:

— until 1963, well over a century and a half, almost two centuries after we started.

Wade against Hunter first annunciated the value of right concept a century and a half after we started and I might add in a non-jury case, and now it is settled, but it really did not become this till 1969 because it was not settled in Montana.

It was not settled in any of the States until Benton against Maryland in 1969.

It is settled in the minds of the Federal Judiciary because it has been around for a long time, but it has not been with the others.

As far back or as recently as 1935, the ALI is recommending that jeopardy not attach until verdict of the jury, where it was in the beginning.

So (Voice Overlap) it is not settled and our question is, have we afforded protection for this defendant under any guise by saying it attaches at the same time as it does in a non-jury case.

Excuse me, sir.

Potter Stewart:

As I understood, your point is that the — this — this point of the law that something happens when the jury is empaneled and sworn.

It was not ever really part of the double-jeopardy —

Robert S. Keller:

No.

Potter Stewart:

— was at all.

Potter Stewart:

It was part of a quite a different rule that a person is entitled once the jury is empaneled and sworn to go to trial with that jury and to go to a final conclusion of the trial?

Robert S. Keller:

Civil or criminal?

Potter Stewart:

Civil or criminal and that is a different — it has a different origin from the — from — and is unrelated to the double-jeopardy?

Robert S. Keller:

That is correct.

Thurgood Marshall:

Mr. Keller, exactly when you were a judge, I think most of them the jury, could not the defense counsel commit himself on cross examination?

Robert S. Keller:

Yes, that is why I agree with the rule of attachment which is the swearing of the first witness because I think when that first witness, the prosecution starts to testify, the defense counsel commits himself by objecting even before cross-examination, by objecting to a question or for strategy reasons, not objecting to testimony.

At that point he has in this thing and that is why I do not have any objection and I do not mean it really because of Montana statute either.

Sure, I want to see, I think we have afforded protection, but just in terms of trying to figure out where this ought to be and be something that is going to protect the defendant’s right across the board and not just in a given State, I can see it attaching that soon because at that point the defense counsel is starting to put something into this case, but he does not want to have to. He has tipped his hand.

If he goes a second time, it is not going to be that way and I know it is not going to be that way.

Judge Leventhal pegged it and I think any of us who have tried cases know that Judge Leventhal has pegged it, that second run is for a —

Thurgood Marshall:

(Inaudible) real easy, talking about real easy?

Robert S. Keller:

Real easy.

Thurgood Marshall:

then he commits himself, well, I made a mistake, judge, I move to suppress the (Inaudible) trial?

Robert S. Keller:

No, he really does not.

Yeah, I know.

I know that — that he has certainly got to do his work, but he has got to his work when his client came in the office and you can go back to the time that the information is filed and you see efforts on that time to — to question whether or not the affidavit for leave to file is correct or you question whether or not, before I adjust the piece, probable cause was shown and cause a transcript to be made and you have argued that and that is all part of the tools of the trade, but the real question is, has he committed himself then?

No, he really has not because if he does not do it then, he is not going to be able to do it.

So that is just part of the process.

Thurgood Marshall:

(Inaudible) if he changes his own strategy —

Robert S. Keller:

Of course he could.

William H. Rehnquist:

Why should — why should the so-called “valued right of the defendant” to go to trial before the first jury depend entirely on when the defendant’s lawyer has committed himself, as you put it?

Robert S. Keller:

Because I do not think his right is that valued until that point.

Lord Coke’s rule, if you have read into biographies on Lord Coke, he never gave any reasons for his rules.

If they took out all the rules that he gave with no reason, they would lose 75% of the English law, but his rules have been good so how do we find out what the reason is that gave us valued right and that is where we came into this case.

William H. Rehnquist:

What I am asking you to do is to perhaps do what Lord Coke did not and supply a reason for the statement you make that the commencement of the “defendant’s valued right” begins with the point when the defendant’s counsel has committed himself, why should that be?

Robert S. Keller:

Because once he has tipped his hand to the prosecution on something that the prosecution does not know where he is going to go, then if he gets a retrial on that point, there is nothing left for the defense to have.

It is just that — it has already been run.

There is no spontaneity.

The second trial, and I use this as an example where there is a hung jury, so it is a clear rerun of the whole show and that defendant’s chances at that time, Justice Rehnquist are just simply zilch.

There is no secret.

Robert S. Keller:

The prosecution knows where the defense counsel is going.

Those witnesses that were there to testify that the defense counsel shredded on cross-examination and now get the shading that is indicated by Judge Leventhal in the Carsey case and it is just a different trial, and the defendant’s chances are seriously enhanced, apart —

William H. Rehnquist:

With many hung jury cases that is the classical reason for granting a mistrial and permitting the prosecution to start over again?

Robert S. Keller:

Yes, I know that because there is no reasonable alternative.

The alternative as pointed out in the Arizona case and prior to that, is you are going to put some sort of influence in those juries to come out with a — with some verdict rather than a mistrial and that is not fair.

But just because we do not like that aspect of it, I read this in the valued right definition or reasons, given the Arizona case, this possibility that you may convict an innocent man, that is where it comes.

It is that chance that he is going to tip his defense and that it runs again and that may well be an innocent man.

I do not see anything significant about the defendant’s right or anything else until that point when he has tipped his hand.

Warren E. Burger:

And you say that never occurs until the first witness is called?

Robert S. Keller:

It can occur until that time, unless he wants to voluntarily go out and do something to tip his hand, which would include making an opening statement of what he is tipping.

Warren E. Burger:

And he can always save that opening statement in both federal and in Montana courts until he is ready to open?

Robert S. Keller:

That is correct.

John Paul Stevens:

Mr. Keller, can I ask you one more question?

You said at the outset that, of course you did not have the benefit of Arizona against Washington when you filed your briefs and that had — if you had, that kind of decides the whole case, but do you think Arizona against Washington helps you or hurts you?

I am not quite sure I understand your position?

Robert S. Keller:

I do not know, either.[Laughter]

I want to said that you could read this later the same way Downum is being read to say, well, if this happens when the prosecutor made his opening statement, that is before my point in time and we are in trouble, but on the other hand, this Court had to know this case was pending and this Court did not say, as it had said in the past, jeopardy attaches when the jury is sworn and when you assiduously did you not say that, I have to believe that you are leaving open this very question we are here today on and I think that hinges on what is the valued right and — and when should it have constitutional protection.

Warren E. Burger:

Very well, Mr. Keller.

Mr. Geller?

Kenneth Steven Geller:

Mr. Chief Justice and may it please the Court.

With the Court’s permission, there are two issues in this case that I do not intend to discuss.

First is the question of manifest necessity.

As we noted in our opening brief, the record in this case, does not permit a determination of a number of factors essential to a resolution on manifest necessity issue.

Since it does not indicate whether appellees resisted the amendment of count two of the initial information or whether they objected to the dismissal of that count or to the dismissal of the remaining counts.

In any event, the state appears to have abandoned that issue in this Court.

The second question that I do not plan to address at any length, is whether the State should be free to adopt a rule for the attachment of jeopardy that differs from the rule applicable in federal courts, is not a matter in which the Federal Government has a substantial interest.

It is our view, however, that there is little to justify disparity in the rule as applied to state and federal courts.

The Double Jeopardy prohibition of the Fifth Amendment is of course fully enforceable against the states to the Fourteenth Amendment and the time when jeopardy attaches would appear to be an essential ingredient of the Double Jeopardy guarantee rather than a mere incidental or procedural feature that may be varied without doing damage to the basic constitutional right.

William H. Rehnquist:

You are more or less just volunteering as if it is of no concern to the United States as a litigant, I take it?

Kenneth Steven Geller:

Well, the issue that is of concern to the United States is when this jeopardy attaches as a matter of constitutional law.

Kenneth Steven Geller:

If the Court were then to hold that the States may be free to vary, that portion of the Court’s opinion would be of no substantial interest to the United States.

I would like to limit my discussion then to the essential question posed by the Court in its order of December 5th, that is when as the matter of constitutional mandate, does jeopardy attach?

Now, at — at common law, as Mr. Keller has indicated, indeed even today in England jeopardy did not attach until verdict.

The historical record leaves little doubt that this was the understanding of the framers to the Fifth Amendment and that the Double Jeopardy Clause was not originally intended to bar the re-prosecution of the defendant whose first trial was aborted for whatever reasons, prior to verdict.

Despite this background, it is settled today that the Double Jeopardy Clause is more than a mere constitutionalization of res judicata principles, plus the prohibition of government appeals from acquittals.

The Clause also protects the “defendant’s valued right” as this Court has said in a number of occasions, to have this trial completed once it has begun.

In other words, a right to go to verdict and perhaps to end the dispute then and there with an acquittal.

Obviously, in order to protect the defendant’s interest in receiving the verdict of the first fact-finder and hence avoiding repetitive trials, jeopardy must attach at some point prior to the verdict.

Question then is that what point in a criminal proceeding does the defendant’s interest in going forward with a trial to its completion and not being required to begin a new, becomes sufficiently substantial to support the conclusion that jeopardy has attached and accordingly, that subsequent trial terminations must be judged under the unyielding requirements of the Double Jeopardy Clause.

In fixing this point, we believe that the Court should be guided by three considerations.

First consideration, which was alluded to earlier by Mr. Justice Stevens, is that the time of the attachment of jeopardy should represent the bright line.

This is an area in which the need for certainty and predictability is especially important.

Unless the point at which the defendant has been placed in jeopardy can be identified with precision in every trial, judges would be forced to guess as to the propriety of terminating the proceedings prematurely, in a situation perhaps not amounting to manifest necessity.

An incorrect assessment may leave to — lead to immunity for a defendant whose guilt is capable of establishment.

For these reasons, we doubt that the tests offered by the state in this case, which appears to depend, first upon the sufficiency of the evidence that had been introduced, and now when the defendant’s lawyer may have committed himself in some way, or in Professor Schulhofer’s recent article, which is relied on by appellee Cline, which depends in part upon a necessarily subjective view of the difficulties encountered in voir dire, I doubt whether either of those tests would be workable.

The second, we believe that jeopardy should attach at the same point in jury and non-jury trials.

As this Court observed in Jenkins, the Double Jeopardy Clause nowhere distinguishes between jury and bench trials.

The defendant’s risk of conviction is precisely the same in either type of trial and whether the fact-finder is the judge or the jury, defendant has the identical Fifth Amendment interest in completing the trial, hopefully with an acquittal once it has begun.

Finally, the point that selected for the attachment of jeopardy must be responsive to the evils of re-prosecution that the Double Jeopardy Clause was historically designed to prevent, that is the anxieties, the strain and expense suffered by the defendant who is forced to undergo repetitive trials, the possibility of manipulation or harassment by a prosecutor, particularly the chance of a second opportunity to convict the defendant if the first trial is viewed as proceeding unfavorable.

Now, with those three underlying principles in mind, the United States believes that the Constitution does not require jeopardy to attach in any case, state or federal, jury or non-jury, until the fact-finder first begins to receive evidence.

Only when the government begins to meet its burden of establishing beyond a reasonable doubt that the defendant committed the crime charged, can it truly be said that the defendant faces the risk of conviction and it is the risk of conviction that this Court stated in Reid against Jones that the constitutional concept of jeopardy connotes.

The point at which evidence going to the general issue of guilt or innocence is produced, marks a convenient and we believe logical boundary in every criminal case, separating pre-trial preliminaries which concededly do not deserve the protections of the Double Jeopardy Clause from the trial itself.

The rule of jeopardy attaches when the fact-finder begins to hear evidence, which is the — of course the rule that has traditionally been applied in bench trials, fully accommodates the defendant’s Fifth Amendment interest. Prior to the introduction of evidence, the defendant’s interest in avoiding re-prosecution ordinarily is very weak.

He has not yet suffered any of the strains or emotional distress associated with being forced to undergo a criminal trial.

Moreover, the defendant has little, if any, stake at that pre-evidentiary stage in proceeding to a verdict in order to preserve any fact-findings that the finder of the fact may have made in his favor.

Byron R. White:

What about his interest in the particular jury that he has — that he has chosen and that — that is now sworn and is ready to hear evidence?

Kenneth Steven Geller:

We do not believe that the interest in preserving a particular jury for non-evidentiary reasons is an interest that is protected by the Double Jeopardy Clause.

Byron R. White:

What do you mean non-evidentiary reasons?

He wants it because he thinks this is the jury that would do best with the evidence that he is going to introduce?

Kenneth Steven Geller:

Well, first objection is that, that is highly speculative.

Kenneth Steven Geller:

At least when evidence begins to be introduced, we can assess what sort of impact it might have —

Byron R. White:

Well, maybe speculating, but — but — but the defendant has spent a long time in picking the jury and he thinks he has got a good one and the courts before its sworn, I suppose you could say, if something that blew up the trial, there would not be any Double Jeopardy attachment.

He — once it is sworn, the jury processes is — is completed — and here is a jury that the defendant’s counsel is convinced that is going to be a very — maybe a very biased jury.

He is convinced that it will be biased in his favor.

You — you cannot say that it is not a substantial interest here?

Kenneth Steven Geller:

Well, I can say it is not a substantial interest protected by the Double Jeopardy Clause.

I can agree with you, Mr. Justice White, that it may be a substantial interest of the defendant that is entitled to protection, perhaps even a constitutional protection.

And if for example, a prosecutor sought to abort the trial after the jury had been selected, but before evidence began because he thought that the finder of fact would be unduly favorable to the defendant, there might well be remedies for a defendant in that situation, either under the Jury Trial Clause of the Sixth Amendment, or the Due Process Clause of the Fifth Amendment.

Warren E. Burger:

But does the jury — does the constitution guarantee the man a favorable jury or an unfair jury?

Kenneth Steven Geller:

Obviously it guarantees him a fair jury.

Byron R. White:

Well, the defendant is convinced that this — he just is very convinced that this is an impartial jury and sometimes his — his lawyer knows or have not been the impartial juries and he thinks — but he thinks he has got one now and would like to keep it?

Kenneth Steven Geller:

I am not disputing that that maybe a substantial interest of the defendants.

I think the task for this Court is to determine whether that is an interest protected by the Double Jeopardy Clause instead of perhaps the speedy — the Jury Trial Clause or the Due Process Clause.

I think there is substantial evidence that it is not an interest protected by the Double Jeopardy Clause.

For one, as you alluded to a moment ago, Mr. Justice White, if the prosecutor at the voir dire or when the venire comes into the courtroom or even after the jury has been selected, but before it has been sworn, does something to abort the trial because he thinks that the jury is unduly favorable to the defendant.

There is absolutely no Double Jeopardy analysis of his actions, although there may well be —

Byron R. White:

Well, depends on when — that depends on when you decide Double Jeopardy — when you decide jeopardy attaches?

Kenneth Steven Geller:

Well, the law is developed in the last 200 years to — to now, the current understanding which I assume this Court has prepared to reassess in this case, such that in jury trial —

Byron R. White:

Well, I know — well, I know, but you want to — you want to reassess, maybe we should reassess it forward?

Kenneth Steven Geller:

I think that the Court should reassess the entire area and decide where logically in light of the history if the Double Jeopardy Clause that is —

Byron R. White:

Well, so far, it makes more sense — what you have said it makes more sense to move it forward to the — when you begin —

Kenneth Steven Geller:

But only if —

Byron R. White:

— over the years than later?

Kenneth Steven Geller:

Well, I think it should be obvious, I think to the Court at this point that based upon how the Court defines the interest protected by the Double Jeopardy Clause, it becomes relatively easy to fix the point for the attachment of jeopardy.

In other words, if the Court finds that the Double Jeopardy Clause in fact protects the defendant’s interest in favorable jury selection, then jeopardy should obviously attach at or prior to the selection of the jury.

Byron R. White:

I know, but you said — you said in one of the interests protected is to save the defendant from — from money, anxiety and time of doing — going through it twice, and so —

Kenneth Steven Geller:

Going through a trial twice.

Byron R. White:

Well then, going through a trial twice or going through a criminal proceeding twice, and it may take a couple of weeks to select a jury?

Kenneth Steven Geller:

It maybe, it may take several — several weeks to litigate a pre-trial suppression motion or a number of other pre-trial preliminaries, but no one has ever suggested that the defendant has a double jeopardy —

Byron R. White:

Not yet?

Kenneth Steven Geller:

Not yet.[Laughter]

Thurgood Marshall:

I will not use the word that usually you — the Judge says or the jury says, if I created the prosecution, is it satisfactory to the defense?

Usually, and they are right?

Once you have — jury that is satisfactory to the defendant instead of — in favor of the defendant, this applies onwards?

Kenneth Steven Geller:

Yes, significance in the use of the —

Thurgood Marshall:

Well I mean, the point is that they always ask that question, do they not?

Kenneth Steven Geller:

I assume that means whether any of the litigants wants to exercise any further challenges for clause, whether the — whether they do not believe that the jury that has been selected is favorable.

Thurgood Marshall:

You do not believe that in every case the judge turns and says this jury is satisfactory, can they use those exact words?

Kenneth Steven Geller:

Well, I am sure it varies case to case, Justice Marshall, I am not familiar with the practice in the trial courts in every state or in the federal courts, and I do not believe that that is —

Thurgood Marshall:

Well then, have you ever seen a trial where the Judge did not say it?

Kenneth Steven Geller:

No.

I think what — what is important is — is not that the litigant has or have an attempt to pick a favorable jury, but that he had attempts as Chief Justice said, to pick an impartial jury.

Potter Stewart:

Or say, historically?

The Double Jeopardy Clause was applicable to somebody who had been tried and convicted or tried and acquitted, he could not be tried again, and this business of the interest in going to trial before the same jury and so on was then grafted on to it and had quite a different history, did it not?

Kenneth Steven Geller:

Well, the history —

Potter Stewart:

If one looks at the Perez opinion, as I just have and realize for the first time there is no mention at all in that opinion of the Constitution itself, let alone the Double Jeopardy Clause?

Kenneth Steven Geller:

Well, indeed justice’s Story says that the first trial did not end in a conviction or an acquittal.

Potter Stewart:

Precisely, and therefore one can — one can infer that from that opinion, that he is saying the Double Jeopardy Clause is inapplicable we are — we are —

Kenneth Steven Geller:

I think that is correct.

Potter Stewart:

We are concerned here with something else?

Kenneth Steven Geller:

Well, the purpose of the Double Jeopardy Clause is to prevent repetitive trials.

That may happen by a (Voice Overlap) —

Well, after a — after a con — or an acquittal?

Kenneth Steven Geller:

After a conviction or an acquittal, but they — they equally happen, I assume, if partway down the trial, the prosecutor decides to abort it and start again, and as again they put —

Potter Stewart:

Well, only recently is that I thought had been grafted on to the Double Jeopardy guarantee?

Kenneth Steven Geller:

Well, it was not until 1963, that this Court recognized the defendant’s interest in not having to go through it?

Potter Stewart:

Right, and as part of the double jeopardy interest?

Kenneth Steven Geller:

Right.

Potter Stewart:

And there have been — before that, historically it had been a different interest, may perhaps protected by the Due Process Clause?

Kenneth Steven Geller:

I think that, that is — I think that may be right.

Kenneth Steven Geller:

That is correct, although I must say that when this notion that jeopardy attached prior to verdict crept into our law, is one of the substantial mysteries of Double Jeopardy jurisprudence.

We have not been able to determine when precisely the — the thought became accepted in the United States and those courts that have applied the notion have not seen fit to explain what the rationale is that they are using to deviate from the common law.

Potter Stewart:

In the common law, as a condition precedent for the — for any inquiry under the Double Jeopardy Clause, there would have to have been an acquittal or a conviction?

Kenneth Steven Geller:

That is correct.

There has to be a verdict.

John Paul Stevens:

The government does not contend that that is the present state of the double jeopardy constitutional law in this country, does it?

Kenneth Steven Geller:

No, it does not.

We agree that jeopardy must attach at some point prior — prior to verdict in order to preserve the defendant’s right, not to have to go through unnecessarily repetitive trial.

John Paul Stevens:

And the government does agree that this valued right, whatever it is, is protected by the Double Jeopardy Clause of the United States Constitution?

Kenneth Steven Geller:

We do.

We agree that once we fix the point at which jeopardy attaches, any trial terminations after that point should be judged by Double Jeopardy standards.

Robert S. Keller:

And the government has in amicus curiae in this case?

Kenneth Steven Geller:

Yes, it is.

Warren E. Burger:

If you give that much weight to that Mr. Geller, how do you reconcile that with what Justice Black said in Wade against Hunter? What has been said is enough to show that the “defendant’s valued right” to have his trial completed by a particular tribunal must in some instances be subordinated to the public interest in fair trials designed to end in just judgments.

If it is totally constitutional, Justice Black’s statement is inconsistent, is it not?

Kenneth Steven Geller:

I think that the manifest necessity notion that Justice Black was articulating in Wade against Hunter is also a constitutional notion.

In other words, merely finding that jeopardy is attached and that the trial has been aborted, does not end the analysis.

In order for the defendant to have been deprived of this Fifth Amendment rights, there also must not have been a manifest necessity before the trial termination.

Thank you.

Warren E. Burger:

Mr. Leaphart?

W. William Leaphart:

Mr. Chief Justice and may it please the Court.

The appellants in this case have taken the possession that the so called valued right to a particular tribunal is not of constitutional stature, rather it is a procedural practice, which has developed out of English common law, and the appellant has concluded that this valued right to a particular tribunal does not come into play or does not attach until after the tribunal has actually heard the defendant’s case.

As to the Double Jeopardy Clause, the appellant takes the position in his brief that jeopardy does not attach until after the state has presented some evidence from which the jury could actually convict the defendant.

The solicitor on the other hand has assumed a more moderate position and has urged this Court that jeopardy should attach no later than the swearing of the first witness.

I submit to the Court that the — this — the Court’s recent opinion in Arizona versus Washington contradicts both the position of the appellant and of the solicitor.

In the Arizona case, the defense counsel engaged in some references during his opening statement to inadmissible evidence and as a consequence of that reference, the trial Court had to declare a mistrial at the request of the prosecution.

On a Federal Habeas Corpus appeal, this Court subjected the trial court’s actions to a Double Jeopardy analysis and manifest necessity analysis and concluded that there was manifest necessity for the — the declaration of the mistrial.

The import of that case lies in the fact that the — the incident arose during the opening statements and that this Court decided that case on the grounds of double jeopardy even though the first witness had not been sworn.

And I submit to the Court that implicit in the Arizona decision, is a conclusion that Federal Double Jeopardy had attached, at least as early as the opening statement and of course the opening statement is prior in time to the point which has been suggested by the solicitor and is prior in time to the point which has been suggested by the appellant.

If, as the solicitor has argued, Double Jeopardy interest could not come into play —

John Paul Stevens:

The logic of that argument really escapes me.

Supposing before trial started, the police conducted an illegal search of some kind and the evidence was not introduced until just before the jury retired for the verdict.

Would you say, well, the jeopardy had not attached because the search occurred before?

I mean, you do not look at the time of the — the time when jeopardy attaches does not depend on when the error was committed, does it?

W. William Leaphart:

No, Your Honor.

What I — what I am saying or what I meant to say is this the fact — the mere fact that the Court looked at the double jeopardy problem and analyzed the case in terms of manifest necessity, meant that double jeopardy had attached at least as early as the time the error occurred.

Potter Stewart:

Single jeopardy — jeopardy?

W. William Leaphart:

Excuse me, jeopardy has attached at least that early. If —

John Paul Stevens:

Well, I just do not understand the logic because it actually dismissed the case after two witnesses had testified.

So if jeopardy attaches when a witness testifies, then jeopardy is attached when he made his ruling?

W. William Leaphart:

Well, respectfully Your Honor, I would submit that the — the fact that two witnesses had testified in that case is really incidental to the decision because the —

John Paul Stevens:

But is it incidental to the question when the jeopardy is attached?

W. William Leaphart:

No, it is not.

That is what is being argued, but — in that particular fact situation, the error arose during the opening statement and that was the sole basis of the declaration, I think, of the declaration of mistrial.

John Paul Stevens:

That is true.

William H. Rehnquist:

But the judge did not declare the mistrial until two witnesses had testified?

W. William Leaphart:

That is correct, Your Honor, but I would — I think that the fact that he grounded that decision upon the defense counsel’s improper references during the opening statement indicates that jeopardy had to have attached at least that early.

If it had not attached at the time of the opening statements were made, the trial judge could have dismissed the case immediately upon the request of the prosecution.

Thurgood Marshall:

Well, how about the several other cases where a defense counsel does not make an opening statement?

W. William Leaphart:

Hypothetically, Your Honor, where the defense counsel reserves?

Thurgood Marshall:

Yeah.

W. William Leaphart:

And you are asking when was jeopardy attached in that?

Thurgood Marshall:

Yeah.

W. William Leaphart:

Well, if I may backtrack, I am not suggesting that the Arizona case specifically sets the time when jeopardy attaches as the opening statement.

I am just saying that as a minimum, it says that it had to have attached at least as early as the opening statement.

If I —

John Paul Stevens:

Well, but supposing this — this prejudicial argument had been made during the voir dire, which could have happened, he could have made some prejudicial remark, would you say jeopardy therefore had to attach during voir dire?

W. William Leaphart:

No, Your Honor.

I think that the triggering factor is going to be the point in time which the particular tribunal comes into existence.

We are talking about a valued right to a particular tribunal and I — I am not going to argue to this Court that jeopardy can attach, that the valued right has any meaning prior to the time that that particular tribunal is even in existence.

W. William Leaphart:

I think that that is the event which triggers the valued right.

William H. Rehnquist:

What is it in Arizona versus Washington that makes you say it has come into existence at the point that the jury is sworn?

W. William Leaphart:

I do not — I do not think the case goes that far, Your Honor.

William H. Rehnquist:

I do not either.

W. William Leaphart:

I think it only goes as far as saying that it has attached at least at the time of the opening statements.

It does not say how far in advance of that time.

William H. Rehnquist:

Well — but I do not think then you — you have satisfied me as to my brother Steven’s earlier question, that supposing in mid-trial after several witnesses have sworn, the trial judge grants a motion to suppress evidence as a result of illegal conduct that took place four or five weeks before the trial.

Now, surely you are not going to say that the double — that the jeopardy attached at the time that search and seizure took place, are you?

W. William Leaphart:

No, Your Honor, I am not.

I do not think that is consistent with the “valued right” concept.

The obviously — the jury, the particular tribunal was not in existence at the time when motion to suppress was made, but what I am saying that I think Arizona stands for is that if jeopardy had not attached prior to the swearing of the first witness, I do not think the trial judge would have even had to concern himself with the “defendant’s valued right” to proceed.

He could have declared the mistrial without any concern at all for manifest necessity.

William H. Rehnquist:

But he had — he granted it when two witnesses had been sworn and testified?

W. William Leaphart:

Well, I think that he was merely taking the prosecution’s motion under advisement while he had a chance to look up — look up the law in the matter and I do not think that the fact was two witnesses.

But meanwhile jeopardy had attached?

W. William Leaphart:

Well, I believe, Your Honor, in the State of Arizona, that it is attached at the beginning of the opening statements, but I do not think that the Arizona law controls when Federal Double Jeopardy attaches.

Arizona falls right in between the two points that are being argued in this case, but I do not think that is the controlling factor in that case, in the — in the Arizona state.

John Paul Stevens:

Really I think what you are saying is that the trial judge who had to make the ruling was considering the fact that jeopardy had attached at the time of opening statements, but that was either as a matter of Arizona law or perhaps even his understanding of the Constitution, but that really does not —

W. William Leaphart:

Well, it may have been his understanding of Arizona law, Your Honor, but for purposes of the Arizona decision in this Court, that — that was a question of — of federal law because this Court in Jorn and in Serfass had stated that the attaching of the jeopardy rule indicates the point in time when constitutional policies are brought into play.

I do not think we can have the State of Arizona or the State of Montana, or any other state telling the United States Supreme Court when constitutional policies were brought into play.

That is — that is why I say I think it is implicit in that decision, by the mere fact that the Court engaged in a Double Jeopardy analysis, there is an implicit conclusion that federal jeopardy had attached.

There are, I think two other points which have been raised by my adversaries which are answered in the Arizona opinion.

First of all the appellant has taken the possession that the valued right to a particular tribunal is not part of the Double Jeopardy Clause, that it is a common law rule or procedure.

I would bring the Court’s attention to Justice’s — Justice Stevens’ unequivocal statement in the Arizona opinion where he points out that the Double Jeopardy Clause embraces the defendant’s valued right to have his trial completed by a particular tribunal and I think in light of that, there is no question, but —

Potter Stewart:

Well, that goes back to Jorn which in turn goes back to Hunter, I guess?

W. William Leaphart:

That is Correct, Your Honor.

I think that the —

Potter Stewart:

It does not mean that is sound necessarily.

It does not mean that the two concepts do not have different historic origins?

W. William Leaphart:

In fact, I would agree with that.

W. William Leaphart:

I think they do.

Potter Stewart:

Right.

W. William Leaphart:

And that it had been grafted under the Double Jeopardy Clause.

Warren E. Burger:

In Wade — Wade against Hunter was a jury case or a jury trial?

W. William Leaphart:

Your Honor, Wade against Hunter was a Court Marshal case and I think there can be certain analogies drawn between that in the jury trial because the defendant in a Court Marshall does have some say in the picking of the — of the fact-finder.

At least, I — as I understand it you can exercise some challenges for a cause, and I think you can also exercise one peremptory challenge.

William H. Rehnquist:

Which was in World War II?

Thurgood Marshall:

That no one have — no one has ever done it.[Laughter]

W. William Leaphart:

I do not know, Your Honor.

Thurgood Marshall:

Because it is not healthy.[Laughter]

Warren E. Burger:

But there is — there is no real analogy between the composition of a Court Marshal and the composition of a jury of a trial?

W. William Leaphart:

Just — just to the very limited extent that the defendant does have some say so in picking the fact —

Warren E. Burger:

Theoretically?

W. William Leaphart:

Yes.

The solicitor seems to argue in — at least in his brief, that the Double Jeopardy Clause — the sole purpose of the Double Jeopardy Clause is to protect the defendant from multiple exposures to the risk of conviction and certainly the Double Jeopardy Clause does protect that interest, but I think that this Court in a number of opinions, up to and including the Arizona opinion, has taken great pains to point out that the clause also protects the “defendant’s valued right.”

And when the Court says the valued right to proceed before that particular tribunal, that includes at least three other interests that protects the defendant from the — the danger of having to engage in prolonged period of financial and emotional burden, that protects the defendant from a prolonged period of stigma which results as a consequence of pending criminal charges and finally and very importantly, it prevents the state from using the jury as a prosecutorial tool, that is replacing one jury with another jury when it appears that the state would be unable to convict.

On three — three separate places within the Arizona opinion, the Court states that every and any mistrial declaration inevitably affects the defendant’s constitutional rights under the valued right concept and I emphasize the words “any and every mistrial declaration” because I think that the use of those words points out that the interest which is being protected — are being protected do not hinge upon in any way the swearing of the first witness.

We are talking about the interests which come into play as soon as that particular tribunal has been empaneled. The fact that the witness is sworn in really has — is of no consequence in terms of the interest, which come under the valued right.

Thurgood Marshall:

How in the world can a man be convicted if no evidence is present against him?

W. William Leaphart:

Well he cannot, Your Honor, but I —

Thurgood Marshall:

Well, then how is he in jeopardy?

W. William Leaphart:

Well, I am saying that this Court has interpreted the —

Thurgood Marshall:

I know we discussed that the last time, but the — nobody has raised that point this time?

W. William Leaphart:

Well, in terms of actually being convicted, he is not in jeopardy, but I think this Court has interpreted the Double Jeopardy Clause as including a valued right to proceed before the jury first empaneled and I think that — that — that interest attaches immediately upon the empaneling of the jury.

We are talking about something broader than just the — the mere risk of conviction.

Thurgood Marshall:

Well, we are talking about a possibility of two or three minutes too?

W. William Leaphart:

Well, I think that depends on a particular case we are talking about.

It is conceivable that the jury could be empaneled on a Friday afternoon, you could have a weekend recess, opening statements may take a long time, defense counsel as well as the prosecution may make motions.

Thurgood Marshall:

And it also could be a case that is tried early on a Monday morning?

W. William Leaphart:

That is correct and it may be a matter of seconds.

Thurgood Marshall:

And both sides waive on new statement?

W. William Leaphart:

That is correct.

Thurgood Marshall:

That would not be much good, would it?

W. William Leaphart:

What would not be much good, Your Honor then?

Thurgood Marshall:

The one minute?

W. William Leaphart:

Well, the — conceivably, the prosecutor can still stand up and move to dismiss the jury even though he has only got one minute to do it.

I think his motives are going to be pretty transparent, but he can do it.

Thurgood Marshall:

I am talking about an average trial.

The difference — you say it has to be one witness sworn?

W. William Leaphart:

Well no, I am arguing against that position, Your Honor.

I — I am just saying that I do not think that — I do not think the fact that a witness has been sworn —

Thurgood Marshall:

I mean, that is the government’s position?

W. William Leaphart:

That is correct.

Thurgood Marshall:

That is right.

If one witness is sworn?

W. William Leaphart:

Right.

Thurgood Marshall:

And you say no, once the jury empaneled?

W. William Leaphart:

Correct.

Thurgood Marshall:

And that could be just a few minutes?

W. William Leaphart:

Between those two points?

Thurgood Marshall:

Right.

It could be?

W. William Leaphart:

It could be.

Mr. Leaphart, I am still a little puzzled.

Let me ask what I asked you last time?

Why are you here?

Is it not Cline out of this case now entirely and is in the case moot as to him?

W. William Leaphart:

Your Honor, Mr. Cline is out — out of jail.

I have not — I have not raised the question of mootness.

As I answered last time, I think that the — Mr. Cline’s interest in this case lies in the fact that should this Court reverse the Ninth Circuit Court of Appeals, there is the very clear possibility that the state, if it wants to then can re-prosecute him on some of the other seven counts, which were involved in this case.

W. William Leaphart:

He — he has a very definite interest in saying — into the saying that the decision of the Ninth Circuit Court of Appeals is affirmed.

He — he is the appellee in this case.

I am here merely representing him.

The state is the one that has chosen to appeal and from that, I gather that they still have an interest in prosecuting Mr. Cline.

In this Court, I — I cannot cite the cases to you right now.

I have got them in my briefcase if you would like, but the case — the Court is held on two different occasions, I think that the remedies available under the habeas corpus statutes are broader in scope and mere — merely releasing a man from prison that it can rectify the — the situation at hand.

But we are familiar with those cases, but I just wondered what substance are left in your — in your case?

W. William Leaphart:

My time is up.

Thank you.

Warren E. Burger:

Mr. Moses?

Charles F. Moses:

Mr. Chief Justice and may it please the Court.

May I suggest to the Court a different area for discussion?

Justice Stewart brought up the issue of the origin of the valued right.

I think that the Fourteenth Amendment to the Constitution is one of the important issues in this case.

I think the question that is raised here, where it says that no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, that the history of that Amendment in 1866, while through the Adamson case of Justice Black, which started the incorporation theory is a relevant issue here.

Should the Court adopt a position under the Fourteenth Amendment that the states should follow case by case, jot by jot, under the incorporation theory —

William H. Rehnquist:

Justice Black wrote a dissenting opinion —

Charles F. Moses:

Yes, he wrote a dissenting opinion and what he did in the dissenting opinion Mr. Justice Rehnquist was to set forth all of the congressional proceedings where Bingham, the congressman in 1866 said, “I sponsored or I wrote this Fourteenth Amendment because of the case of Barron versus Baltimore which said simply that the first 8 Amendments applied only to the Federal Government.”

So that the construction of the Fourteenth Amendment, I think has a measure of importance here.

The reason that I say that because if it is in origin, a privilege or immunity that is not rare or abstract, but is something that is recognized by the courts, then that is something that should be enforced under the Fourteenth Amendment.

I raise that issue because I think that then, the federal and the state would have the same privileges and immunities.

It would be consistent with the Supremacy Clause as we understand it, the Law of the Land, the bench and the bar would know exactly what the rule was and I think that that is important.

The reason that I mention that is because of the second issue, under the Fourteenth Amendment, and that is not the privileges and immunities, but is the Due Process section and it seems to me as I read the cases, that we will apply to the states through the Fourteenth Amendment those constitutional rights the Court deems fundamental, and thus apply federal statutes.

It is a selective incorporation as I see it.

It seems to me that Benton versus Maryland, which is an important case on the issue of jeopardy, raises that issue of selective incorporation.

In other words, what we are saying is that under the Due Process of the Fourteenth Amendment is that Double Jeopardy is a fundamental right.

We can agree upon that, but that is not the end of the inquiry.

Is the time it attaches simply non-constitutional baggage?

If we are going to be selective in our incorporation of the first 8 amendments, and of course, that raises the question of whether it is implicit in the right given.

I would like to use the word parsing or pick a part.

Charles F. Moses:

Jeopardy attaches when the jury is empaneled and sworn.

If you just say, jeopardy attaches and leave out when the jury is empaneled and sworn, then I think the language is meaningless.

It does not make sense.

You are going to have to say that jeopardy attaches either when the jury is empaneled and sworn to make it complete or when the state says it does or when the first witness, so that I think it is implicit even under the selective incorporation rule.

There has been a lot of opposition to this incorporation doctrine.

Justice Stewart has written upon it.

One of the things that I think has to be decided is whether we are going to reject the incorporation theory entirely under the Fourteenth Amendment, and I think that is relevant to this particular decision.

The first 8 amendments are only applicable to federal proceedings.

Any school boy knows that.

States may adopt a rule and states may adopt any standard they wish, subject only to the strictures of their own state law or Constitutions in the fundamental fairness test.

You may want to adopt that.

Now, if that — if that is done, it seems to me that we have a chancellor’s foot standard and we are going back to Palko and Twining.

I think those are the issues in my judgment in this case is the application of the Due Process Clause, whether we are going to have complete incorporation, selective incorporation, or rejection of the incorporation doctrine. One of the difficulties, if I may add this to my argument very briefly, is that there is great uncertainty in the law.

Lawyers do not know how to advise their clients?

Lawyers do not know how to argue before the courts because they simply do not know what the law is?

That is why I — I think there should be some certainty in the law.

We have in Montana, for instance, take Winship on reasonable doubt, it is a requirement.

In Montana, we do not have that rule.

We have a different rule, a higher probability of its existence as to one of the essential elements.

Which rule do you follow?

We have the presumption of innocence.

We have US versus Castles, which is a federal case in which I was involved in.

We have the statutory signs as waiver provision in my view.

We have had difficulty and I have had difficulty in another state with Brady versus Maryland. The Court has simply said, “We do not accept Brady.

We do not accept it, because our statute does not provide for it.

”It took two months to trial almost and the case was finally reversed on the basis that the Supreme Court finally straightened out, the District Court on Brady versus Maryland.

We are eliminating or have legislation to eliminate search and seizure in the State of Montana, almost got by in the last legislation session.

Potter Stewart:

What do you mean by that; eliminate search and seizure?

Charles F. Moses:

Well, eliminate the prohibitions of the Fourth Amendment.

I want to be very dogmatic about that.

Charles F. Moses:

I am not talking about eliminating the remedy of the exclusionary rules.

Potter Stewart:

You said, “Eliminate search seizure?”

Charles F. Moses:

I am saying eliminate search and seizure, now that is my opinion, my judgment.

Potter Stewart:

So, there would be no searches and no seizures in Montana?

Charles F. Moses:

There would be no — there would be no penalty as far as Due Process is concerned with respect to how the evidence was obtained, in the courts in Montana.

Potter Stewart:

No exclusionary rules?

Charles F. Moses:

No exclusionary rules.

That may be a good idea, but the rule is — the question is that we go from the very basic discovery, reasonable doubt, presumption of innocence, burden of proof, search and seizure, the rule in the State of Montana is entirely different, and we do not know as practicing attorneys, what rule do we follow?

Do we follow the federal rule because it is a matter of constitutional importance under the Supremacy Clause or do we follow the state statute?

It is a difficult problem from my point of view.

Now, finally, to end my statement because I wanted to address the Court’s attention simply to the Fourteenth Amendment.

Let me end by saying that I disagree with my friend, Mr. Keller.

I — in the last two years, I have decided that I make all opening statements at the beginning of the case.

I just had a murder case with a battered woman syndrome and I wanted the jury to hear about the battered woman syndrome at the earliest possible time before the shooting in the back testimony came to the floor.

I had a good reason for it, but I am now almost exclusively making opening statements.

Secondly, it is true in the practice in Montana that the judge is now permitted to give instructions to aid and assist the jury in the fair consideration of the case as they sit there, and that is a good idea and that occurs before the first witness is sworn.

My conclusion to that Court is this.

The rule I think is of constitutional significance as a matter of fact, what I would like to do if I may — let me read you an opinion in order that I think would be appropriate in this case.

“The Double Jeopardy Clause of the United States Constitution is a fundamental constitutional right.

Jeopardy, as we have said, attaches when the jury is empaneled and sworn.

Anything in the Constitution or laws of any state to the contrary notwithstanding, the decision is affirmed.”

That is what I would propose.

Thank you, gentlemen.

Warren E. Burger:

Let me ask you just one question?

When you spoke of the judge giving instructions, you are speaking of preliminary limited instructions about the burden of proof in the order of trial, not a — not a complete instruction on the law of the particular case?

Charles F. Moses:

In essence, that is correct Mr. Chief Justice.

What the judge does now under the current practice, is simply give the jury those necessary instructions that it feels is appropriate to guide the jury under the — as it sits there.

For instance, the presumption of innocence rule and that you may not form or express any opinion as to the merits of the case, that you are the sole judges of the credibility of the witnesses, things of that kind.

So they really know what they are supposed to do, but that occurs after the jury is empaneled and sworn and before the first witness takes the stand.

Warren E. Burger:

Very well.

Lewis F. Powell, Jr.:

Well, may I ask this question?

Charles F. Moses:

Yes sir.

Lewis F. Powell, Jr.:

My recollection is the information in this case was dismissed solely because of a typographical error in date?

Charles F. Moses:

No sir.

Lewis F. Powell, Jr.:

What was it dismissed for?

Charles F. Moses:

That was only one — that was only one of the grounds for dismissal, Mr. Justice Powell.

Lewis F. Powell, Jr.:

That was a ground for dismissal of one of the counts?

Charles F. Moses:

Of one of the counts, yes sir.

Lewis F. Powell, Jr.:

Right.

Charles F. Moses:

There were five other counts that were good.

Lewis F. Powell, Jr.:

Right.

Well Judge Tuttle characterized that as I recall as a tactical stroke.

Were you a counsel at the time?

Charles F. Moses:

I was counsel at the time and it was not a kind of tactical stroke, sir.

Lewis F. Powell, Jr.:

May I ask what prompted that you to wait until after the jury was sworn?

Charles F. Moses:

We have — let me tell you exactly what happened.

I had raised the issue as to the — whether the offenses or any of them stated a — a criminal offense as to all of the counts.

I had raised substantial objections and they were overruled without the court ever reading the brief.

Once, the jury was empaneled and sworn, I raised that same issue again, the same issue and I still contend that there were no sufficient grounds to state a public offense as to all of the counts.

At that particular time, I think they moved to amend, to have a particular date and of course, I objected, but my objection and I — I also requested at that time that we go to the Supreme Court and have this all resolved, but the Supreme Court when the application was made by the attorney general to go to the Supreme Court after they refused to allow the amendment and some other changes, the Supreme Court refused and said, “Go back and try it.”

Then they came into court and said, “We are going to dismiss them all, all of them.”

I think there were five other good counts, at least, then they dismissed them all and were starting again and the record is plain that I objected in writing — I am sorry, I did not object in writing, the record is clear that I objected at that time.

So it was not, to that extent a — a tactical maneuver on my part, Mr. Justice Powell.

I was there because the — the charges were not any good in my judgment and I wanted to go to the Supreme Court to prove that.

The Supreme Court would not hear it and during that course of time, they moved to amend and of course, I objected them — to them doing anything.

That is the way it occurred.

John Paul Stevens:

Mr. Moses just to follow up on Justice Powell’s question.

In your judgment, if the case had gone to trial on the original counts and there had been a verdict of guilty, would there have been reversible error in the record and –?

Charles F. Moses:

In my judgment, yes.

John Paul Stevens:

And then what would have happened?

John Paul Stevens:

Then if that — if that had happened, then there would have been a reversal and a new trial, is it not?

Charles F. Moses:

You bet, that is exactly correct.

John Paul Stevens:

So you would have — your client would have had to stand trial twice if you are —

Charles F. Moses:

That — that is precisely correct, sir.

John Paul Stevens:

Well then how was your client in terms of Double Jeopardy policy and valued right and all the rest that we have been talking about, how was your client hurt at all by having the dismissal take place right at the outset of the proceeding, instead of going through a whole trial on appeal and ending up in the same place?

Charles F. Moses:

I have a personal prejudice about that, sir.

In my — in my opinion, being the trial counsel, the reason overall that it was dismissed, they had five other good charges.

The reason that it was dismissed is that the prosecution felt they had a lousy jury.

I thought we killed them on voir dire as to what the issues were and then we had a good jury.

This is at the capital where you have state employees and — and things of that kind and in selecting the jury, I thought we had a good jury.

I think the prosecution thought they had a lousy jury and which —

John Paul Stevens:

You did not have a good enough jury to insist on your right.

Did you try to go — did you want to go to trial on that, I am trying to remember now?

Charles F. Moses:

Yes.

John Paul Stevens:

You did, yeah.

Charles F. Moses:

Yes, I was insisting we go to trial.

I raised my objections, I — judge turns me down.

I thought you moved to dismiss —

John Paul Stevens:

I thought you moved to dismiss the –?

Charles F. Moses:

Oh! Yes.

I — I had moved to dismiss because of the fact that they did not state a public offense.

Lewis F. Powell, Jr.:

Right and you objected also and when the counsel for the state raised to correct —

Charles F. Moses:

Oh! Yes, yes sir.

I sure did.

That is exactly what I did.

It was my judgment at that time that those counts did not state a public offense and I moved to dismiss at very stage of the proceeding.

If I had had jeopardy in mind, I would have waited until the first witness was sworn.

I would not have raised the issue then.

I am silly.

Byron R. White:

But you are not insisting on going to trial.

Byron R. White:

Very understandably, you were doing everything you could do to get the indictments dismissed, so you would not go to trial?

Charles F. Moses:

You bet.

Yes, I was trying to get the — every stage of the proceeding, I was objecting, and that was my purpose.

Thank you.

Warren E. Burger:

Very well.

Mr. Keller?

Robert S. Keller:

I do not think I saved much time, Mr. Chief Justice.

Warren E. Burger:

You have three minutes left.

Robert S. Keller:

The Wade against Hunter, Justice Murphy with Justice Douglas and Justice Rutledge agreeing in dissent said in the first paragraph, “We agree with the Court below that in the military courts as in civil, jeopardy within the meaning of the Fifth Amendment attaches when the court begins the hearing of evidence” on any thing, question that Court Marshal that you were not talking about a jury or picking a jury, that was prior to 1951 and you just know they did not have jury right.

That is correct.

Robert S. Keller:

The only other points are just in passing, any opening statement that my colleague, Mr. Moses makes to a jury does not tell the prosecution anything.

I know that he does not and he might have a battered woman syndrome, he might have anything else, but he does not tell the prosecution anything not uncommonly, not until on appeal, but frankly so, yeah there is no problem there and we do not have that back —

John Paul Stevens:

Mr. Keller, may I ask you a question please?

Just on the point that Justice Powell and I were inquiring of your adversary, what is the state’s position on whether or not there was a manifest necessity, just so we have it clear on the record?

Robert S. Keller:

At that particular time?

John Paul Stevens:

Yes.

Robert S. Keller:

I did not think that there was a manifest necessity question.

I can recall that Justice Rehnquist asking me, maybe you might and I would disagree on this, well-taken, but at that particular time and we did not participate in the trial of this, at that particular time, we had three counts that were defective just because of a typographical error.

What Mr. Moses is talking about is he thought all nine were defective, aside from the typographical error just as a matter of law.

Potter Stewart:

Because they did not charge criminal offenses under Montana law?

Robert S. Keller:

That is correct, but as to these three counts that had to get thrown out, they charged an offense that was not an offense any longer.

The — the law had changed in Montana, Criminal Code of 1973 took effect on January 01, 1974 and these three counts said the crimes in 1973, language occurred in January and February 1974.

Well, they could go to trial.

They could go anywhere and they could never convict on that, but you did make a good point and Judge Bennett will never make a mistake again.

He will grant the amendment, have the trial and get reversed, and we will try it again.

We will not talk Double Jeopardy and you know that is terrible.

John Paul Stevens:

Mr. Keller I just — I just want to be sure I understand.

Is it clear then in the state’s view that the trial judge had power to amend the counts and there was no necessity for dismissal, is that what you are saying?

Robert S. Keller:

I do not think that he did have that power.

I think that change was substantive and our statute at that time prevented the substantive change. You are going to charge the defendant with picking up an extra year of time to defend on its face, not really, but you were on its face, it was there.

John Paul Stevens:

Let me ask the same question again.

In your view, was there or was there not manifest necessity for dismissal of the charges?

Robert S. Keller:

To dismiss those charges, yes, I think there was on those three, but not on the remaining six.

John Paul Stevens:

I see.

So the remaining —

Robert S. Keller:

That is where the hang up came and he got convicted oddmently (Ph) of one of the three that was corrected.

He got charged at the second trial with one of the six that was not effected and one of the three that was corrected and found guilty of one of the three that was corrected.

Prosecution at that time did not want to go ahead on those six because they were not that good, but they would have sure come under Ash v. Swenson.

It would have been clerical staff of court as a alleged because it all took the same period of time.

They all have to do with one woman and one transaction literally.

They were spreadeagled at the time whether they knew it or not, and it may have not been a tactical stroke, but sure it was an awfully smart move.

Warren E. Burger:

Thank you Mr. Keller.

Robert S. Keller:

Thank you, Your Honor.

Warren E. Burger:

Thank you gentleman.

The case is submitted.